On the eve of the reported settlement of the Flash cookie litigation by Quantcast and Clearspring, Covington alum Kashmir Hill reports at Forbes about an online practice that could be the next “Flash cookie” among privacy advocates:  web history sniffing.

According to the Complaint (PDF) filed last week in federal court in California, a Netherlands company called Midstream Media illicitly collected information about users’ web histories on its network of “YouPorn” websites.  The litigation claims that Midstream used a JavaScript security flaw to determine whether particular pages had been visited by particular browser, apparently to track which users had also visited its competitors’ sites.

Like other online privacy litigation litigation that we’ve seen this year, the Midstream plaintiffs’ case relies on state consumer protection statutes and the Computer Fraud and Abuse Act, or CFAA — which existed long before both history sniffing and video streaming.  Even with the creative license that comes from extending these laws to the Internet, it’s not at all clear that the plaintiffs will be able to succeed.

Continue Reading The New Flash Cookie: History Sniffing